RISHI JAIN & ANR. vs PIYUSH COLONIZERS LTD., & ORS.

The complainants booked an office space with the OP for the purpose of opening their office. According to them, the booking was made for the purpose of earning their livelihood by means of self-employment in the said office/unit. The OP allotted a commercial unit admeasuring 2800 sq. ft. on the fifth floor of a building namely Piyush Business Park, which it was to construct in Sector-31 of Faridabad. The sale consideration for the aforesaid unit was agreed at Rs.1,33,00,000/- and the parties entered into an Office Buyers Agreement dated 12.10.2006. Since the construction of unit allotted to the complainants was not sanctioned, the parties entered into a second agreement whereby a unit on the ground floor of the proposed building was allotted to the complainants for a consideration of Rs2,25,22,327/-. As per clause 4.a of the said agreement, the possession of the unit was to be delivered to the complainants within 30 months from the date on which the agreement was executed or at best with an extended period of six months thereafter. The possession having not been offered to the complainants even with the extended period, they are before this Commission, seeking possession of the unit allotted to them or in the alternative, refund of the entire amount paid by them to the OP alongwith compensation etc.

The complaint has been resisted primarily with an objection that the complainants are not consumers within the meaning of Section 2 (1)(d) of the Consumer Protection Act. As noted earlier, the case of the complainants as set out in the complaint as well as in their affidavit by way of evidence is that they did not own any commercial property and therefore, had booked the commercial unit in question for the purpose of earning their livelihood by means of self-employment therein. The complainants are in the business of trading of shares. The learned counsel for the OP however, has drawn my attention to clause 4(d) & (e) of the Buyers Agreement which reads as under:

"4.(d) That upon completion of the project and unit therein the first party shall be fully entitled to lease the unit to any other party who is interested in taking the same on lease, hereinafter referred to as "intending party" as per the terms of this agreement. The second party hereby authorizes the first party to grant to any intending party on lease the unit, during which the second party undertakes that he shall not grant the unit on lease to any other party; make claim for putting the second unit for his own independent use or deal otherwise with the unit without obtaining the prior written consent of first party. Second party further undertakes to pay the brokerage and all other charges, fees, expenses etc. to the first party and execute all the necessary documents without any delay as and whenever so required by the first party.

(e) That second party hereby authorizes first party to:

spend money, for and on his behalf, on interior/fit-out/finishing works within the said unit to meet the requirements of the prospective lessee, or authorize the prospective lessee to carry out such works in the said unit;

agree upon the rent and other terms and conditions for grant of such lease;

grant lease of the said unit, as a single premises or jointly with adjoining units, to a single lessee;

enter into and execute letter of intent, agreement to lease and lease deed or any other documents in favour of the prospective lessee in terms of this agreement, either for the unit or for a bigger area forming part of the unit and the adjacent commercial spaces;

receive security deposit from lessee;

hand-over the possession of the unit to the sub-lessee, for and on behalf of the second party; and

realize the money spent by the first party (proportionately or otherwise) or paid to the prospective tenant/lessee from the second party or in the alternative realize the same from the security deposit or rent received from the lessee."

It is evident from a perusal of the aforesaid clause contained in the Buyers Agreement that the complainants had booked the commercial unit in question for the purpose of making income by way of leasing out the same to a tenant to be identified by the OP. Not only the complainants expressly authorized the OP to identify the intending lessee, they also undertook not to give the said unit on lease to any other party or to use the same for their independent use without prior written consent of the OP. They also undertook to pay the brokerage and other charges which could be incurred by the OP in leasing out the said premises. The OP was also given authority to settle the rent as well as the terms and conditions on which the lease was to be granted. The OP was authorized to lease out the unit allotted to the complainants either as a single premises or by joining the same with the adjoining units. The OP could also execute the lease deed with the lessee identified by it and receive security deposit from him. It could also deliver possession of the said unit to the lessee. In view of the aforesaid clauses contained in the Buyers Agreement, it is not possible to accept the contention of the complainants that they had booked the unit for self-use by using the same as their office for running their business of share trading. The complainants therefore, cannot be said to be consumers as defined in Section 2(1)(d) of the Consumer Protection Act. Consequently, this Commission lacks inherent jurisdiction to entertain the complaint.

For the reasons stated hereinabove, the complaint is hereby dismissed with liberty to the complainants to avail such remedy other than filing a consumer complaint as may be open to them in law. If the complainants approach a Civil Court, it shall be open to them to seek benefit of the provisions contained in Section 14 of the Limitation Act, if such a benefit is otherwise admissible to them in law in which case, the application seeking such a benefit can be opposed by the OP on such grounds as may be open to it in law. The complaint stands disposed of accordingly. The learned counsel for the OP has undertaken not to cancel the allotment for two weeks from today. Subject to orders of the Court/Forum which the complainants may approach for the redressal of their grievances, they shall be entitled to take any action open to them in law after the said two weeks period. Order be given dasti.